Opinion
CIVIL ACTION 02-0129, SECTION "T"(1)
September 24, 2002
Before the Court is the Motion for Summary Judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, filed on behalf of the Defendant, Rite Aid Corporation. The Court, having considered the memoranda of counsel, the Court record, the applicable law and jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND:
This suit involves a tort claim for injuries and damages sustained by Plaintiff pursuant to the provisions of Louisiana Civil Code Arts. 2315, 2316, 2317, and 2320. The action was originally filed in the 24th Judicial District Court, Parish of Jefferson, State of Louisiana, and was removed on January 15, 2002. Plaintiff contends that Defendants, Rite Aid Corporation, Ryder Integrated Logistics, Inc., and Wayne Moore, are jointly, severally, and in sohdo legally bound unto the Plaintiff to fully and justly compensate the Plaintiff for injuries that he sustained, for his past and future medical, drug and hospital expenses incurred as a consequence of the accident in the suit, for his past and future pain and suffering, physically and mentally; his past and future mental anguish; his past and future inability to engage in normal, social and physical activities, his past and future loss of income: his permanent bodily disability and disfigurement; and for all other appropriate, general and equitable relief to which he maybe entitled, including legal interest from the date of the judicial demand until paid, and for all of these proceedings, including expert fees.
Plaintiff alleges that on or about January 11, 2001, he entered the Rite Aid Store No. 7237, located at 725 Veterans Boulevard, Metairie, Louisiana. At approximately, 12:00 p.m. (Noon), Plaintiff claims that, While standing at the pharmacy counter, he was approached by a Rite Aid employee, who requested that Plaintiff assist defendant, truck driver Wayne Moore, push a pallet of merchandise up a ramp from a delivery truck into the stock room of the pharmacy. Plaintiff alleges that in the process of assisting defendant, Wayne Moore, push the pallet of merchandise up a ramp in to the stockroom. Plaintiff suffered a severe lumbar injury which has been diagnosed as a herniated disc by his treating physician and confirmed by diagnostic testing. As a remedy, Plaintiff seeks damages due to numerous allegations of negligence and strict liability on part of the Defendants.
Defendants, in response, filed an answer denying Plaintiffs allegations citing lack of sufficient information, and failure of Plaintiff to use reasonable judgement as a prudent person.
II. ARGUMENTS OF THE RESPECTIVE PARTIES:
A. Arguments of the Defendant in Support of its Motion for Summary Judgment:
In asking for summary judgment, defendant, Rite Aid Corporation, points out that since Defendant will not bear the burden of proof at trial, all Defendant must do is point out that there is an absence of factual support for one essential element of the Plaintiff's claim regarding the particular alleged injuries. Thereafter, Plaintiff must present evidence, not merely allegations, sufficient to establish that there is enough of a disagreement to require submission to a jury. Skotak, 953 F.2d at 913.
In the argument for their Motion for Summary Judgment, the Defendant maintains that the Plaintiff fails to meet his evidentiary burden under Louisiana's duty-risk analysis. Defendants point to Granger v. United States Fidelity Guaranty Company, 266 So.2d 526 (La.App. 3rd Cir. 1972), wherein, the Court states that the duty of care to an invitee is to:
Exercise reasonable or ordinary care for his safety commensurate with the particular circumstances involved . . . the occupier does not insurer (sic) an invitee against the possibility of accident. The invitee assumes all normally observable or ordinary risks incidental to the use of the premises. The occupier is not liable for an injury to an invitee resulting from a danger which is observable, or which should have been observed by the invitee in the exercise of reasonable care, or from a danger which the invitee should reasonable have appreciated before exposing himself to it.
Defendants maintain that there was nothing unreasonably dangerous about the premises in question. In fact, Defendant asserts that the test to determine whether an owner has fulfilled the requirements to satisfy his duty for the safety of persons on its premises depends on the "nature of the facility, the dangers presented by it, and the injured person's familiarity with the premises and its dangers, the risk of harm is less to a person with experience, knowledge, and familiarity with the premises." Boycher v. Livingston Parish School Board, 716 So.2d 187 (La.App. 1st Cir. 1998). Defendant urges that the Plaintiff's employment background consisted of `various jobs in which he performed construction work, thus, he had experience, knowledge, and familiarity with the proper techniques that are necessary for moving items,' and that this familiarity, combined with his voluntariness to undertake the activity, mitigates the duty of Rite Aid. Finally, Defendant asserts that Plaintiff was not promised anything in return for his assistance, and thus was strictly a volunteer in the activity.
B. Arguments of the Plaintiffs in Opposition to the Motion for Summary Judgment:
In opposition to the Motion for Summary Judgment, the plaintiffs assert the following arguments:
1. Summary Judgment is not appropriate because discovery is not complete, and pursuant to F.R.C.P. 56 (f). the Motion should be dismissed or continued.
2. Defendant proposes a legal theory which does not exist. Plaintiff maintains that there is `no such thing as a reasonable duty to a business invitee."
3. Plaintiff was engaged as a customer in the Rite Aid whereupon the Rite Aid employee solicited the Plaintiff to aid the Ryder deliveryman, and in an effort to placate the customer, offered him discounted purchases. Plaintiff points to purchase receipts which allegedly indicate that the purchases were discounted at a Rite Aid checkout counter. Although Defendant presents an affidavit from the Rite Aid employee stating that the Plaintiff received nothing in return, Plaintiff asserts that this testimony is not relevant.
III. LAW AND ANALYSIS:
A. Law on Motion for Summary Judgment:
The Federal Rules of Civil Procedure provide that summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. FED. R. Civ. P. 56(c). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Stults v. Conoco, Inc., 76 F.3d 651, 655-56 (5th Cir. 1996) (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), cert. denied, 506 U.S. 832 (1992)). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis supplied); Tubacex, v. Inc. v. M/V RISAN, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Indus. Co., 475 U.S. at 588. Finally, the Court notes that substantive law determines the materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "A dispute about a material fact is "genuine" . . . if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Skotak, 953 F.2d at 913, citing Anderson, 477 U.S. at 248.
B. The Court's Analysis:
Plaintiff has predicated his claims on Louisiana Civil Code Articles 2315, 2316, 2317 and 2320. Under La. R.S. 9:2800.6, merchants owe a duty of care to persons who use their premises. The merchant is charged with the duty to exercise reasonable care to keep its aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which may reasonably give rise to damage. See id. In an action under this codal provision, the claimant has the burden of proving all of the following:
1. The condition presented an unreasonable risk of harm to the claimant and the risk of harm was reasonably foreseeable.
2. The merchant either created or had actual or constructive notice of the condition which caused the damage. prior to the occurrence.
3. The merchant failed to exercise reasonable care.
Under Louisiana Civil Code Articles 2315, 2316 and 2317, a duty-risk approach is appropriate in this matter. Under the Louisiana approach, the Plaintiff must establish that: (1) the defendant had a duty to conform his conduct to a specific standard (duty element); (2) proof that the defendants conduct failed to conform to the appropriate standard (breach element); (3) defendant's breach of duty was a cause in fact of the injuries complained of (cause in fact element); (4) proof that the defendants substandard conduct was a legal cause of the plaintiff's injuries (the scope of the liability or scope of' protection element); and (5) plaintiff suffered actual damages. Boykin v. Louisiana Transit Company, 707 So.2d 1225, 1230 (La. 1998).
Plaintiff alleges that the accident and the resulting injuries were caused through no fault of his own, but was caused by the negligence, carelessness and the strict liability of the Defendants. Specifically. Plaintiff alleges that La. Civil Code Articles 2315, 2316, and 2317 was violated due to Defendant's:(1) failure to maintain its business premises in a reasonably safe condition for business invitees; (2) negligence in failing to employ physically capable personnel to conduct its business operations, its negligence in failing to employ sufficient personnel to conduct its business operations in a safe and proper manner; (3) negligence in requesting your plaintiff to assist an employee which defendant knew and/or in the exercise of reasonable care should have known was physically incapable of performing the duties of his employment; (4) negligent action allowing an employee to operate a motor vehicle who was physically handicapped; (5) failure to properly train and supervise its employees to insure that they were capable of performing their assigned duties without requesting physical assistance from business invitees on its premises; (6) negligently failed to in form Plaintiff that defendant was physically incapable of assisting Plaintiff to discharge cargo; (7) movement of a pallette load of merchandise; (8) negligently failed to secure other employees of defendant to assist in unloading pallette into the storeroom; (9) negligently or deliberately failing to disclose to the Plaintiff the weight of the pallette; (10) negligently requesting and allowing a business invitee to assist one of its employees perform assigned duties; (11) Defendant is strictly liable; and, (12) Defendant is negligent.
In looking at the arguments and the evidence provided by the parties, this Court is drawn to the duty which Rite Aid owed to its customer, Robert Sciacca. When the Plaintiff entered the store, he had a reasonable expectation that the store would be free from hazardous conditions. According to the record, including the deposition of the Plaintiff, see Exhibit B, there existed no hazardous conditions in the store, no hazardous conditions on the ramp where the pallet was being loaded, nor any indications of inclement weather.
However, also is not a simple slip and fall case. The events in this matter did not involve the Plainniff slipping on a slick area due to the failure of an employee to notice a spill. The events did not involve an object falling off of the shelves onto the person of the Plaintiff, thereby causing an injury. Although the Plaintiff was not injured in the events of normally shopping in the Rite Aid, and although Rite Aid and its employees apparently kept the store in good working order for business invitees. the second that the Rite Aid employee asked the Plaintiff to assist the Ryder delivery man in moving the pallet, the subsequent events and their consequences, which are in dispute and differ greatly as between the parties, produce enough presence of material fact to put in doubt the decision that no reasonable trier of fact could decide that a fact would be genuine, and therefore, would be powerless to render a verdict for one party. We are left to ponder questions such as: Do the actions of the Rite Aid employee fit within the duty owed to customers? Does the risk of moving the pallette, on plain sight, fit within normal and reasonable risk which would otherwise be assumed by the invitee? Was the danger of the weight of the pallette observable to a reasonable and prudent person? If not or in the alternative, does the duty to the invitee extend beyond ordinary and observable circumstances such that the Rite Aid employee should not have asked the customer to engage in such an activity?
In its Motion for Summary Judgment, Defendant more than adequately carries its burden of identifying the possibility of an absence of genuine issue of material fact; however, under Matsushita, 475 U.S. 574 (1986), and its progeny, the non-movant Plaintiff has also met its burden of demonstrating that the disputed actions of the Rite Aid employee present genuine issue for trial. As such, this Court is unable, with the material presented before it, to grant the Defendant's Motion for Summary Judgment.
Accordingly,
IT IS ORDERED that the Motion for Summary Judgment filed on behalf of the defendant, Rite And Corporation, be and the same is hereby DENIED.